JUDGMENT : KOSSAR AHMAD QURESHI, J. (MEMBER) 1. To put in brief the facts of the case are that the land measuring 04 Kanals and 13 Marlas comprising of survey No. 233 situated in estate Bagat-e-Barzulla Srinagar has been purchased by virtue of Registered Sale Deed by mother of petitioner, namely, Mst. Gulman Ara Begum in the year 1994 B.K. corresponding to year 1937 A.D. This Registered Sale Deed has been given effect in revenue records and necessary entries have been made in favour of Mst. Gulman Ara Begum in respect of said land measuring 4 Kanals and 13 Marias comprising of survey No. 233 situated in Estate Bagat-e-Barzulla Srinagar. Since the sale Deed of this land pertains to year 1994 B.K. corresponding to 1937 A.D. and at that time residence of Mst. Gulman Ara Begum has been shown in the said Sale Deed to be Muzaffarabad which was part of Princely State of Kashmir and at that time there existed neither independent India nor Pakistan. When the Sale Deed was given effect in revenue records the same residence was shown therein also. That after more than a decade of the said Sale Deed and its effect in revenue records, in the year 1947 India and Pakistan were formed and thereafter due to those disturbances question of evacuees arose and came into existence the Evacuee Laws. All through this period the land in question continued to be in peaceful possession and occupation of its owner Mst. Gulman Ara Begum. Since she was a common lady as such neither she had any reason to become an evacuee nor was she under any threat of persecution. She was residing in District Baramulla and admittedly was never an evacuee. The Custodian Department on the basis of misinterpretation of revenue records, without making enquiry at all has in a most casual, irresponsible and cursory manner made a notification in the year 1969 whereby this land of petitioner's mother Mst. Gulman Ara Begum has been declared as evacuee property. In this notification name of Mst. Gulman Ara Begum was mispronounced as "Ilman Begum". This wrong notification dragged petitioner/his predecessors in interest into a long and protracted litigation which still continues from the decades together. Gulman Ara Begum continued to be in peaceful possession of her property until in the year 1987 when she came to know about the notification. In this notification name of Mst. Gulman Ara Begum was mispronounced as "Ilman Begum". This wrong notification dragged petitioner/his predecessors in interest into a long and protracted litigation which still continues from the decades together. Gulman Ara Begum continued to be in peaceful possession of her property until in the year 1987 when she came to know about the notification. Thereafter, she applied to the Custodian Department for de-notification and restoration of her property which claim was held time barred by the department. Thereafter, going through a series of litigation all the way to Hon'ble High Court and back to the Custodian Department, the issue was finally decided by the order of Custodian General under No. CG(Court) 420/2013, dated 04/12/2013 whereby Limitation was waved off and delay was condoned and Custodian Kashmir was directed to decide the case within a period of two months after hearing the parties. 2. The Custodian Kashmir has made the impugned order again in a cursory and hush-hush manner merely on the basis of wrong assumptions, which at all is not permitted under law. By virtue of the impugned order Custodian has personified the mispronounced name of Mst. Gulman Ara Begum i.e., "Ilman Begum" in the illegal notification and wrongly without any evidence assumed her to be a different person, which is against fact. The petitioner is all aggrieved of the impugned order of Custodian Kashmir and as such, is challenging the same by way of present revision petition before this Tribunal inter alia on following grounds:- i. That the impugned notification issued by the department has been made at the back of and without calling and hearing petitioner/his predecessors in interest. On this count alone impugned notification is liable to be set aside; ii. That impugned order of custodian and the impugned notification are all perverse as both are not based upon any sought of evidence at all. There is nothing on record to show that Ilman Begum is a different person. The fact is that "Ilman Begum" is mispronunciation of "Mst. Gulman Ara Begum", wrongly recorded in the illegal notification. Hence both the impugned order along with impugned notification are liable to be set aside; iii. That the revenue records referred to by the custodian in the impugned order is the implementation of the Registered Sale Deed which pertains to year 1994 B.K. corresponding to 1937 A.D. in favour of Mst. Gulman Ara Begum", wrongly recorded in the illegal notification. Hence both the impugned order along with impugned notification are liable to be set aside; iii. That the revenue records referred to by the custodian in the impugned order is the implementation of the Registered Sale Deed which pertains to year 1994 B.K. corresponding to 1937 A.D. in favour of Mst. Gulman Ara Begum. iv. That the custodian has failed in his basic duty to verify as to who is the owner of the property in question. The hypothetical person imagined by custodian i.e. "Illman Begum" even if presumed to be an actual person is not the owner of the property because by virtue of the registered Sale Deed it is Mst. Gulman Ara Begum who is the owner of the property and admittedly she was not an evacuee. Hence the property in question cannot be pronounced to be an evacuee property. As such both the impugned order along with impugned notification are illegal and liable to be set aside; v. That custodian has made the impugned order merely on surmises and conjectures. None of the facts were verified by the subordinate officer and impugned order has been made without evaluating evidence and counter evidence. Hence impugned order is all perverse and without any factual and/or legal basis; vi. That impugned order is all vague and non-speaking; viii. That custodian has not acted as a judge. He has acted in an illogical, irrational, and unlawful manner. Impugned order is no order in the eyes of law. Impugned order is glaring, violation of order 41 Rule 31 of CPC. 3. After presentation of this revision petition, the other side was served and record was called which is part of the file. 4. Heard learned counsel for the parties at length, perused the record available on the file. 5. Impugned order is glaring, violation of order 41 Rule 31 of CPC. 3. After presentation of this revision petition, the other side was served and record was called which is part of the file. 4. Heard learned counsel for the parties at length, perused the record available on the file. 5. The learned counsel for the respondents relied on the judgment passed by the Custodian Evacuee Property wherein he has submitted that the petitioner's mother has purchased the land measuring 04 kanals and 13 marlas under survey No. 233 situated at Bagat-e-Barzulla on 25 Mog 1994 B.K. through Sale Deed which holding landed property there cannot claim the property of Bagat-e-Barzulla Srinagar belonging to Illman evacuee because there is no connection between two identities i.e., Illman and Gulman Ara applicant i.e., late mother of the applicant Mirza Masood Khan and the property of Delina cannot come within the purview of evacuee property as it belongs to Guliman Ara R/O Delina/Kanispora. Whereas, Illman Ara r/O Muzaffarabad is a lady resident of PAK and her property which she has purchased as per revenue record is obviously as evacuee property and cannot be claimed by the applicant as she is not Illman Ara rather Gulman Ara begum R/O Delina Kanispora, Baramulla. When as per revenue record Illman Ara Begum is resident of Muzaffarabad holding survey No. 233 as landed property as owner at Bagat-e-Barzulla. The applicants wants to grab an evacuee property by mis-narrating the facts and creating confusion on the subject. Whereas, there is lot of difference between word Illman and Gulman and their residential addresses. The department has notified the property in 1969 on 3rd July on the name of Illman Ara Begum W/O Mehar Ali Khan R/O Muzaffarabad (PAK) on the basis of entries of revenue record and record of rights 1960 after conducting property enquiry and this notification stand issued correctly within the definition of evacuee given in the Section 2 of E.P. Act. the contention of the applicants Mirza Masood Khan and others that property belongs to Gulman Ara mother of Mirza Masood R/O Delina/Kanispora, Baramulla un-equivocally seems a concocted and fabricated story as neither residence nor identify corroborates with each other i.e., evacuee is Illman Ara not Gulman Ara mother of Mirza Masood as the residence of Illman Ara evacuee is Muzaffarabad (PAK) and that of Guliman Ara mother of applicant Mirza Masood is village Delina/Kanispora, Baramulla. The Learned Custodian Evacuee Property Kashmir Srinagar has rejected the application of applicant being baseless. 6. While as the learned counsel for the petitioner has submitted that impugned notification issued by the department has been made at the back of and without calling and hearing the petitioner/his predecessors-in-interest as unfortunately, the custodian has failed to look into this basic aspect of the case. The impugned order of custodian and the impugned notification are all perverse as both are not based upon any sought of evidence at all and there is nothing on record to show that Illman Begum is a different person. The fact is that "Illman Begum" is mispronunciation of "Mst. Gulman Ara Begum" wrongly recorded in the illegal notification. 7. The Revenue record referred to by the custodian in the impugned order is the implementation of registered Sale Deed which pertains to year 1994 B.K. corresponding to year 1937 (A.D) in favour of the Mst. Gulman Ara Begum. Unfortunately, Custodian has failed to look into this basic and vital aspect of the case. The custodian has also failed in his basic duty to verify as to who is the owner of the property in question. The hypothetical person imagined by custodian i.e., "Illman Begum" even if presumed to be an actual person is not the owner of the property because by virtue of the Registered Sale Deed it is Mst. Gulman Ara Begum who is the owner of the property and admittedly she was not evacuee. Therefore, the property in question cannot be pronounced to be the evacuee property thereby both the impugned order along with the impugned notification are illegal. 8. The Custodian has made the impugned order merely on surmises and conjectures as none of the facts were verified by the Subordinate Officer and impugned order has been made without evaluating evidence and counter-evidence. The impugned order is all perverse and without any factual or legal basis, the custodian has not acted as a judge he has acted in an illogical, irrational, and unlawful manner. The impugned order is a glaring violation and non-speaking, makes no legal sense at all. It is merely a giggling of words and non-cohesive sentences deliberately made by the subordinate officer in order to justify the illegal notification, which is legally and factually wrong, illegal and cannot sustain in the eyes of law. 9. The impugned order is a glaring violation and non-speaking, makes no legal sense at all. It is merely a giggling of words and non-cohesive sentences deliberately made by the subordinate officer in order to justify the illegal notification, which is legally and factually wrong, illegal and cannot sustain in the eyes of law. 9. But the Evacuee Property department has never brought on record any evidence oral or documentary. Therefore, the illusory dispute of the identity of a person not being the fact in issue does not sustain the truth. It is trite law of evidence that one who asserts has to prove and one who negates has to disprove. It is on these principles of law that onus to proof/burden has been incorporated in the law of evidence. The applicant after the demise of his mother on 28.11.1988 in the Unit of 3rd SMHS Hospital, where she had been hospitalized before her death, had been pursuing the matter before various authorities including the Custodian General Kashmir, Special tribunal and Hon'ble High Court of J&K as successor-in-interest of Gulman Ara Begum W/O Mirza Mehar Ali Khan. The applicant has already submitted the documentary evidence in the shape of certified copy of the registered sale deed with regard to the land in question executed in the year 1937 A.D. along with the revenue extracts and Gift Deeds subsequently made by the mother of the applicant, namely, Gulman Ara in favour of the applicant with regard to her land situated at Kanispora Baramulla Tehsil Baramulla and also pension payment order pertaining to said Gulman Ara Begum as recipient of family pension of her deceased husband Mirza Mehar Ali Khan and the copies of the Indian passport of the said lady. These documents established the fact that beyond any shadow of doubt that Gulman Ara Begum had never become evacuee and she owned the land in question at Bagat-e-Barzulla Srinagar which has been wrongly notified as Evacuee Property contrary to the facts that the said lady also owned property at Delina Kanispora Baramulla not having been declared as Evacuee Property. 10. The law on the subject is laid down by our own Hon'ble High Court in case titled Ab. Khaliq Dar (Haji) & Ors. v. State of J&K & Ors. reported in 2009 (1) JKJ 173 [HC] wherein the Hon'ble High Court has held as under:- "Evacuees (Administration of Property) Act, Svt. 10. The law on the subject is laid down by our own Hon'ble High Court in case titled Ab. Khaliq Dar (Haji) & Ors. v. State of J&K & Ors. reported in 2009 (1) JKJ 173 [HC] wherein the Hon'ble High Court has held as under:- "Evacuees (Administration of Property) Act, Svt. 2006-sections 6, 7 and 8-Evacuee's property-Declaration as evacuee property and administration thereof-Application of provisions of the Act-Provisions of the Act will apply, when, as a result of fulfillment of requisite conditions, a person is treated an 'evacuee' and this property is declared as 'evacuee property'. Evacuees-Words and Phrases-'Evacuee' and 'Evacuee property'- A person becomes an evacuee not only when he has left the state on 1st of March, 1947 due to the turmoil during partition but even if he leaves the state after such date on account of civil disturbances or fear of such disturbances-Once these conditions are present the person concerned will be treated as 'evacuee' and his property will become 'evacuee property'. Evacuees- Person leaving the state after 1st March, 1947- conditions precedents to treat such person an evacuee- A person leaving the state even after the said date becomes an evacuee, provided, he must have left the state; he must have left for any place outside the territories now forming part of India; and he must have left on account of civil disturbances or fear of such disturbances." 11. Also the Hon'ble Supreme Court in case titled Nasir Ahmad v. Assistant Custodian General, Evacuee Property, U.P. Lucknow reported in MANU/SC/0377/1980 : 1980 AIR SC 1157 has held as under:- "Head note: ADMINISTRATION OF EVACUEE PROPERTY ACT, 1950 - Notice and declaration - Form of- Particulars of the basis of belief not mentioned in the notice - Consequently declaration is invalid. There is no material on record to suggest that on that very day (on the date of notice) the authority had before him any evidence to justify the initiation of a proceeding to declare the appellant an evacuee and his property as evacuee property. The notice thus appears to have been issued without any basis. The Assistant Custodian General who found no merit in the revisional application preferred by the appellant overlooked these aspects of the case. We are therefore, unable to agree with the High Court that the Assistant Custodian General's order did not suffer from any error. (Para 5). The notice thus appears to have been issued without any basis. The Assistant Custodian General who found no merit in the revisional application preferred by the appellant overlooked these aspects of the case. We are therefore, unable to agree with the High Court that the Assistant Custodian General's order did not suffer from any error. (Para 5). We allow this appeal and quash the notice issued to the appellant on March 11, 1954 and all subsequent proceedings based on it. (para 6)". 12. From the above referred law laid down by Hon'ble Supreme Court and by our own Hon'ble High Court, there is no iota of evidence on record that respondents have made any enquiry with regard to Evacuee and have fallen in confusion Illman and Gulman though the certified copy of the Sale Deed was produced by the petitioner wherein the same property which is fallen under Survey No. 233 measuring 4 kanals and 13 marlas stand executed in the name of Gulman Ara Begum W/O Mirza Mehar Ali Khan un-necessarily created confusion and Choas and have caused great inconvenience to the deceased Gulman Ara who was owner of the property and thereafter her son, the petitioner, namely, Mirza Mohammad Masood Khan who is at this time 83 years old. Viewed thus, keeping above discussion into consideration, the revision petition is accepted and impugned order of custodian along with impugned notification is quashed and property in question is ordered to be restored back to the petitioner, namely, Mirza Mohammad Masood Khan R/o Delina Kanispora, Baramulla, Kashmir within a period of three months. The petition is accordingly disposed of and shall be consigned to records after its due completion. The court below file shall also send back along with the copy of this order for compliance. Petition Allowed.